The Massachusetts Legislature recently passed a comprehensive job-creation
bill that contained a little publicized amendment substantially modifying the Massachusetts Personnel Record Law, M.G.L. c. 149 § 52C. Prior to this recent change, the law required employers with 20 or more employees to maintain written personnel records and make those records available to employees 5 days after written request. The recent modifications to the statute added a requirement that those employers must now also provide notification to an employee within 10 days of placing information in the employee’s file “to the extent that the information is, has been used or may be used, to negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.” The statute is enforced by the Attorney General, and penalties of up to $2,500 may be assessed for each violation.
This change promises some potential workplace benefits. Employees will now be in a better position to know where they stand and, if necessary, improve their performance accordingly. Any disagreements over employee reviews, discipline, and the like can now be addressed and resolved in a timely manner, avoiding battles over “surprise” documents later on. However, some commentators have decried these amendments as, among other things, placing an undue burden on employers.
Fortunately, there is reason to believe that the threat of calamity is not so serious as some fear. The prior law already required employers to maintain these same documents in employees’ personnel records. In fact, the very definition of “personnel record” has always included documents relating to “qualifications for employment, transfer, additional compensation or disciplinary action.” The change for employers is not that they have to keep an ever-growing list of documents on file, but that they are now required to tell employees about the documents that may have negative consequences.
Employers do have some reason for concern, however – but so do employees. One risk that both sides now face comes in the context of post-employment litigation. An employer who may very well have a good-faith reason for discharging an employee will be vulnerable to claims of unfairly “papering” an employee’s file if it failed to provide notification that it placed negative documents in an employee’s file. On the other hand, complying with this notification requirement could strain an already-fragile employee relationship. Similarly, employees who do not go through the burdensome and potentially costly steps required to formally contest or rebut negative personnel records may effectively forgo their right to challenge the validity of those records later.
It may be that these changes to the Personnel Records Law will lead to greater communication, enhanced feedback, and more job security. However, these changes could also lead to more frequent disputes and unintended negative consequences for employers and employees alike. As all commentators agree, only time will tell.
